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Earlier this week the New Hampshire Senate Judiciary Committee voted 5-0 to reject HB 133 which would require judges in criminal cases give a specific jury instruction (discussed here). The House had previously approved the bill on a 170-160 vote.

If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

The bill is just the latest in a 20-year effort by the state’s legislature to force judges to give jury nullification instructions and do to so with specific verbiage. A similar bill without specifying what words were to be used was enacted in 2012 only to have the state’s supreme court rule that the law did not require a specific jury nullification instruction.

Provides no defendant shall be incarcerated after a final hearing for nonpayment of an assessment or nonperformance of community service unless counsel has been appointed for a defendant who is indigent or such defendant has executed a valid waiver of counsel for the final hearing.

Provides incarceration of such defendant may occur only if the court, after having conducted an ability to pay or ability to perform final hearing at which the court has made a specific inquiry of the defendant concerning his or her financial circumstances and his or her reasons for nonpayment or nonperformance, finds that the defendant willfully failed to pay the assessment or perform the community service.

Requires court prior to conducting an ability to pay or ability to perform final hearing

Provide the defendant with a financial affidavit and direct the defendant to complete the affidavit;

Inform the defendant that he or she may be immediately incarcerated if the court finds that he or she has willfully failed to comply with the court’s prior order to pay an assessment or perform community service;

Inform the defendant that he or she is entitled to counsel for the final hearing in which incarceration is a possible outcome and, if the defendant cannot afford one, the court will appoint one; and

Explain the issues to be decided at the final hearing as well as the process provided.

Requires court appoint counsel to represent an indigent defendant at a final hearing on an ability to pay or perform held pursuant to this section if incarceration is a possible outcome of the final hearing.

Approved by full Senate 2/16/17. Public Hearing in House Judiciary Committee 3/15/17.

Efforts to permit or require judges in criminal cases give jury nullification instructions (discussed here) have now been introduced in a third state this session.

Oregon SB 924 would not only require judges give a jury nullification instruction in criminal cases but the bill provides the exact and specific wording to be used.

As jurors, if you feel that a conviction would not be a fair or just result in this case, it is within your power to find the defendant not guilty even if you find that the state has proven the defendant’s guilt beyond a reasonable doubt.

This is similar to the bill approved in the New Hampshire House in that it requires the judge use wording directed by the legislature. This issue came up in that state after the legislature adopted a jury-nullification law several years ago and the courts ruled that the judiciary’s existing jury instructions were sufficient.

If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

The Utah bill doesn’t include exact wording, only that defendants would be entitled to have a jury informed of

the potential sentence for a guilty verdict and

“the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

Efforts to require judges give, or allow, jury nullification information in criminal cases have cleared legislative hurdles in Utah while the New Hampshire version remains pending in the Senate after House approval.

Utah HB 332 as amended provides that in all criminal cases, defendants would be entitled to have a jury informed of

the potential sentence for a guilty verdict and

“the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

HB 332 cleared the House Judiciary Committee on a 7-4-1 vote on February 24 and the House Rules committee on February 28. It is now pending on the House 3rd Reading Calendar.

Meanwhile, the 2017 New Hampshire jury nullification bill (HB 133), that includes the specific wording/language judges are to use in instructing a jury, was approved in mid-February by the House (discussed here) and remains pending in the Senate Judiciary Committee.

Since the 1990s (by rule) and 2000 (by law) New Hampshire has provided for a judicial performance evolution program (R.S.A. 490:32 and Supreme Court Rule 56) that produces annual reports on how the state’s judges fare in areas such as Temperament, Legal Knowledge, and Attentiveness. This year, an effort made in the House to expand that program to cover all court personnel has been rejected.

HB 311 would have amended R.S.A. 490:32 to read in operative part (new language in bold)

The chief justice and a majority of the supreme court, in consultation with the administrative judges of the superior and circuit courts and other nonjudicial branch officers as established by court rule, shall design and implement by court rule, a program for performance evaluation of judges and court personnel…The program for performance evaluation shall ensure that each judge and court employeeis evaluated a minimum of once every 3 years.

That proposal was rejected by the House Judiciary Committee as Inexpedient to Legislate on February 15 by a 13-0 vote.

Earlier today the New Hampshire House approved on a 170-160 vote HB 133 which would require judges in criminal cases give a specific jury instruction (discussed here).

If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

The bill is just the latest in a 20-year effort by the state’s legislature to force judges to give jury nullification instructions and do to so with specific verbiage. A similar bill without specifying what words were to be used was enacted in 2012 only to have the state’s supreme court rule that the law did not require a specific jury nullification instruction.

The New Hampshire House Judiciary Committee yesterday forwarded with a “Ought to Pass” recommendation HB 133, which would require judges give specific jury nullification instructions in criminal cases. The bill is just the latest in a 20-year effort by the state’s legislature to force judges to give jury nullification instructions and do to so with specific verbiage. A similar bill without specifying what words were to be used was enacted in 2012 only to have the state’s supreme court rule that the law did not require a specific jury nullification instruction.

HB 133 would provide that “in all criminal proceedings the court shall inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” Moreover, the court would be required to utter the following words, exactly

If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

HB 133 now goes to the full House, which approved the same language in 2016 on a 184-145 vote.

A plan to require New Hampshire judicial nominees be confirmed by the state’s legislature was rejected unanimously by the House Legislative Administration committee last week.

Currently the state’s judges are nominated by the Governor and confirmed by the independently elected Executive Council. CACR 5 called for judges to be nominated by the Governor or Council and confirmed by the legislature in joint session.

The committee report (see page 5) recommending the bill be deemed “inexpedient to legislate” (i.e. rejected) by the full House noted that allowing either the Governor or Council to nominate created the possibility of dueling appointments.

As for the joint session element, the committee report noted “concern about the politicizing of appointments” as well as the amount of time judicial vacancies might remain in such a system.

The latest in the 20+ years of efforts (detailed here) by New Hampshire legislators to require judges give jury nullification instructions are up for a House Judiciary Committee hearing next week. As I noted last year when this came up, current law adopted in 2012 (HB 146) provides

In all court proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions they find to be unjust. The court is mandated to permit the defendant or counsel for the defendant to explain this right of jury nullification to the jury.

Many legislators became angry when the state’s supreme court ruled in 2014 this law did not require a specific jury nullification instruction by judges (State v. Paul (167 N.H. 39))

This year’s bill (HB 133 of 2017) is effectively a repeat of a 2016 bill (HB 1270) approved on a 9-8 vote in the House Judiciary and by the full House 184-145 before being killed in the Senate. HB 133 of 2017 would require judges use the following exact language in instructing criminal jurors

If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

HB 133 is set for its House Judiciary Committee hearing on January 19.